FEATURE
Including Remote Arbitration Clauses in Commercial Contracts By MICHAEL R. HUTTENLOCHER AND LISA M. RICHMAN
T
he pandemic forced many businesses to adapt to remote work. For arbitration practitioners, that meant using videoconferencing technology to conduct arbitration hearings. Although remote arbitration has long been a feature of international arbitration, domestic arbitration practitioners had to use it, too. With vaccine distribution moving apace, many practitioners are eager to get back to the comfort of in-person hearings. Others, however, have found that remote
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arbitration is a viable alternative for resolving disputes and has benefits of witness convenience, decreased travel and decreased costs. As the pandemic ends, contracting parties should consider affirmatively including remote arbitration as an option for resolving disputes and, in some cases, requiring its use.
MAJOR BODIES PERMIT REMOTE ARBITRATION At its simplest, parties can require that the arbitration be administered by an entity that explicitly
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permits the use of remote arbitration hearings. Many major arbitration administrative bodies — such as the American Arbitration Association, International Chamber of Commerce and London Court of International Arbitration — permit arbitrators and parties to conduct hearings via video conference. If parties want to take a more affirmative approach, then the option should be explicitly mentioned in the arbitration clause. It can be as simple as including the following sentence: “The arbitration hearing(s) may be conducted in-person or remotely via appropriate videoconferencing technology.” By including this sentence, the contracting parties tell future interpreters of the contract that they considered using remote arbitration to resolve disputes. This may comfort arbitrators who want to order a remote hearing down the road. Parties have further options to consider. One is to have an affirmative opt-in requirement in the arbitration clause, with such language as the following: “The party demanding arbitration must indicate in its demand whether the arbitration will be conducted in-person or remotely using appropriate videoconferencing technology. If the party seeking arbitration chooses remote arbitration, the responding party shall indicate in its response whether BACK TO CONTENTS
